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Alberta Family Law Reform, 2002 : public workbook PDF

48 Pages·2002·4.4 MB·English
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-^o\ c- 'b Public Workbook Alberta Family Law Reform 2002 Public Workbook 1 About this Workbook This workbook is a consultation guide for stakeholders who wish to provide input to Alberta Justice. Section I l ists proposed changes to legislation and issues that require further public input. Questions in this workbook are designed to help participants focus their thoughts and responses. Individuals and organizations who wish to submit a written response to the questions posed in Section II o f this workbook are asked to forward their comments to the Office of Family Law Reform, Alberta Justice, 4th Floor, Bowker Building, 9833-109 Street, Edmonton, AB T5K 2E8. Additional copies of this workbook are available: ■ On the web by going to www.qov.ab.ca/iust/initevt/initevt.htm and clicking on “Alberta Family Law Reform”. ■ By contacting Alberta Justice at 780-427-5093 (dial 31 0-0000 to be connected toll free) ■ By e-mailing your request to familylaw. reform @qov.ab.ca In addition to questions in this workbook, Albertans may provide feedback to the Office of Family Law Reform on other aspects of the Family Law Reform Project. 2 Public Workbook Table of Contents Message from the Minister 3 About the Alberta Family Law Reform Project 4 Section I: Proposed Changes and Issues for Discussion 5 1. Spousal Support 6 2. Child Support 9 3. Guardianship, Custody and Access 15 4. Court Jurisdiction and Powers 26 5. Personal Relationships 29 Section II: Summary of Questions 41 Public Workbook 3 Message from the Minister of Justice and Attorney General Albertans want this province’s family law made simpler and more accessible. As a result, Alberta Justice is leading the Family Law Reform Project to review all Alberta family laws, to see how we can update and consolidate them. As you read through this workbook, you’ll see that we are looking at a wide range of issues, including spousal support, child access and maintenance, and the rights and obligations of people involved in personal relationships. One thing that we are not looking at is the institution of marriage. The Alberta government believes that marriage is fundamentally a union between a man and a woman. Alberta family law will continue to recognize this distinction. But because the courts have indicated that all individuals must be treated equally in terms of access to the law under the Canadian Charter of Rights and Freedoms, some people feel that the concept of marriage is under attack when provinces are required by the courts to rewrite their laws. I d o not believe that is the case. As lawmakers, we have an opportunity to write our legislation in a manner that protects the traditional fabric of our society including the definition of marriage and spouse, while at the same time recognizing the changing ways in which people associate and create interdependency. We also have the opportunity to ensure that in those areas where government and family law are involved, such as when personal relationships break down, the mechanisms we have in place not only provide for any dependency created within a relationship, but also has rules for resolving disputes that may occur. As is the trademark of this government, Alberta Justice is asking Albertans for their input on these important topics. After reviewing the workbook, I e ncourage you to provide us with your thoughts. Like most aspects of our lives, families have evolved significantly over the years. Your feedback will help us ensure our province’s family law is up-to-date and serves the needs of Alberta families in the 21st century. Thank you for your input. / Dave Hancock, Q.C. Minister of Justice and Attorney General 4 Public Workbook About the Alberta Law Reform Project Mandate The Government of Alberta through Alberta Justice is conducting a review of existing provincial family law. Called the Alberta Family Law Reform Project, its mandate includes determining where legislation can be consolidated, updated and improved. The main goal of family law reform is to make family law more understandable and accessible to Albertans. As part of the Family Law Reform Project, Alberta Justice is consulting with professionals and the general public on a v ariety of family law issues. Consultation Process The public consultation on family law reform involves discussion with stakeholders on traditional family law and personal relationships issues. These issues include child support, spousal support, guardianship, custody and access, court jurisdiction and powers, and interdependent relationships. Special interest groups, professionals, and interested members of the public will be invited to provide their input through round table discussions, focus groups, and written submissions. Family law issues of a t echnical nature will be discussed with lawyers, academics, judges, and other family law experts in a separate series of round tables. Public Workbook 5 Proposed Changes and Issues for Discussion IS e c t Alberta Justice has proposed a number of changes to current family law. While i o n not the focus for public discussions, stakeholders are welcome to review the proposed changes and provide comments in writing to Alberta Justice. The proposed changes are based on research, consultation, precedent, and input from the Alberta Law Reform Institute. The Institute’s contribution to the Family Law Reform Project has been significant, having produced three major reports in 1998 on spousal support, child support, and child guardianship, custody and access. There are also a number of technical issues that require more input before Alberta Justice can recommend changes. This section lists, in five categories, Alberta Justice’s proposed changes and those issues requiring more input. Issues are followed by questions that readers are asked to consider. Public Workbook 6 1. Spousal Support Overview Under Canada’s Constitution, the federal government has responsibility for issues involving divorce, including spousal support when applied for at the time of divorce. Provincial legislation governs all other relationships. In Alberta, the Maintenance Order Act and the Domestic Relations Act address spousal support matters. Many aspects of these Acts, and other legislation governing marriage and interdependent relationships, have become out-dated over time. For example, until recently the Domestic Relations Act permitted only married spouses to apply for spousal support. This changed in 1998 following a C ourt of Appeal decision that said it w as unconstitutional, for the purposes of spousal support, to distinguish between persons who are married and persons who are in common law relationships. Spousal support legislation was changed in 1999 to include married persons and persons in common law relationships. 1.1. Extended Family Support Currently, children have a l egal obligation to support their parents. Similarly, parents and grandparents have a l egal obligation to support their children and grandchildren. Alberta Justice proposes that the extended family support obligation within the Maintenance Order Act be discontinued. New legislation will limit the legal support obligation to parents supporting children, and to spouses supporting each other. Public Workbook 7 1.2. Basic Support It i s p roposed that new legislation contain a g eneral statement about basic spousal support obligations. Persons in relationships where support obligations apply, such as marriage and common law relationships, will be obligated to support each other during and after the breakdown of the relationship until such time as the court terminates the obligation. New Alberta legislation will allow a support obligation to be made: a) Where the persons are living separate and apart. b) Where the persons are not living separate and apart but are experiencing discord of such a d egree that they cannot reasonably be expected to live together. c) Where the persons are not living separate and apart, but one person has refused or neglected to provide the other, without sufficient cause, with food and other necessities when able to do so. 1.3. Assessment of Support Alberta Justice proposes that Alberta’s legislation concerning support obligations use the language, rationale and criteria of the federal Divorce Act. This move would make Alberta’s law consistent with federal legislation. 1.4. Marital Misconduct It is p roposed that, as with the Divorce Act, evidence of marital misconduct (i.e. adultery, cruelty) no longer be required to give the court jurisdiction to make a support order. Generally, marital misconduct would no longer be considered in the assessment of support. Only economic implications - e ither regarding the need for support or regarding the ability to pay - w ould be considered. 8 Public Workbook 1.5. Natal Expenses and Pledging of Credit It i s p roposed that the court be given the power to order prenatal, birth and postnatal expenses for the mother, whether or not the child survives. This would extend a p ower available to the court now in the case of unmarried mothers under the Parentage and Maintenance Act Before married women had independent legal status, a married woman did not have a separate legal existence from her husband. If h er husband abandoned her, she was legally entitled to obtain the necessities of life in her husband’s name. The need for this law is now outdated. It i s p roposed, therefore, that the common law right of a wife to pledge her husband’s credit after separation be abolished. It i s also proposed that the common law presumption that a d eserted wife may act as an agent of her husband to render him liable for necessities, be abolished. 1 .6. Unmarried Cohabitants Legislation that deals with unmarried cohabitants is further covered in this workbook under the section Personal Relationships. See page 29.

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